IN TERSE:
9. (i) The suit properties originally belonged to one Subramania Chettiar. He had two wives. Rengayya Chettiar is his son through first wife and Venkataraman Chettiar is son of second wife. On 16.05.1955, Subramania Chettiar effected a partition among the sons and both the sons got their properties separately. Janaki Ammal was first wife of Rengaiyya Chettiar. They had a daughter by name Amsaveni who was insane since birth. The second wife is Padmalochani. She had no issues. Muniammal was servant maid in the house of Rengayya Chettiar with whom he developed intimacy and were living as husband and wife. Hence there was friction in the relationship of Rengayya Chettiar and Padmalochani which led her to file cases in O.S.No.133 of 1980 and O.S.No.139 of 1980, suits for maintenance for herself and Amsaveni respectively. A.B. Gopalan is brother of Padmalochani, who was managing the properties of Rengayya Chettiar. Venkatarama Chettiar was residing in Salem, Dr. Ramanathan Street. His son is V.Sekar and grandson is Krishnan the plaintiff.
9.(ii) In the maintenance suits, decree were passed directing Rengayya Chettiar to pay Rs.1000/- each to Padmalochani and Amsaveni. There upon he preferred appeals in A.S.No.718 of 1981 and 684 of 1982 before the High Court. Pending appeals, Rengayya Chettiar died on 28.12.1982. Hence Krishnan through his father filed C.M.P.No.1663 of1983 and 1665 of 1983 to implead him as legal representative of Rengayya Chettiar on the strength of the Will, Settlement Deed and Adoption Deed. Those petitions were allowed, against which Padmalochani filed L.P.A.No.175 of 1986 before the High Court, in which the High Court directed the Sub-Judge, Salem to ascertain who is actual legal heir for Rengayya Chettiar. Pursuant to the said direction, the Sub-Judge held an elaborate enquiry and recorded finding that Krishnan is legal heir for Rengayya Chettiar and submitted the same to the High Court.
9.(iii) In order to bring the disputes to an end, Padmalochani received a sum of Rs.2 lakhs as full quit and filed full satisfaction memo through her advocate Mr.P.T. Duraisamy, besides executing a separate agreement. The said advocate also represented that no further proceedings need to be taken in the above said appeals and hence those appeals were dismissed.
9.(iv) Padmalochani Ammal filed S.L.P.No.2625 of 1995 before the Supreme Court contending that she was not intimated as to the enquiry for ascertaining the legal heir of Rengayya Chettiar, that she did not receive Rs.2 lakhs and full satisfaction memo was filed without her knowledge. The S.L.P. was disposed of by the Honourable Supreme Court by holding that the respondent (Krishnan) was impleaded as legal representative after detailed enquiry as per Order 22 Rule 5 and 151 C.P.C., which does not prevent the petitioner if so advised, from questioning the order by way of subsequent suit or the amendment to suit, according to law.
9.(v) The entire circumstances of this case revolve around the following three events:-
(a) On 14.1.1980 Rengayya Chettiar executed a registered Will Ex.A-35 bequeathing his properties to Krishnan.
(b) On 28.1.1980 he also executed a registered Gift Settlement Deed Ex.A-33 in favour of Krishnan with respect to his properties.
(c) On 30.01.1980 Rengayya Chettiar adopted Krishnan son of V. Sekar and his wife Aravindalakshmi by means of a registered Adoption Deed, Ex.A-34.
ADOPTION:
10 (i) In the Adoption Deed Ex.A.34 Rengayya Chettiar has stated that he had no male issues; that he is aged 82 years; that he had executed a gift settlement deed in favour of Krishnan on 28.1.1980 and in order to attain mukthi and for performing obsequies he entertained intention to adopt Krishnan for which on the same date i.e., on 30.1.1980 he performed homam between 9.30 a.m. to 11.30 a.m. during 'Punarpoosam Natchathiram' and as per the 'Sastra', he adopted him and that the said adoption ceremony was celebrated in Salem Vasavi Mahal in which the parents of Krishnan and other elders participated.
10.(ii) In Ex.A-24, certified copy of the deposition of Rengayya Chettiar in O.S.No.133 of 1980, he has stated that he executed settlement in favour of grandson of his brother and Ex.A-3 is copy of the settlement deed. As far as execution of Ex.A.33 is concerned, he himself admitted consciously the execution in earlier proceedings in which Padmalochani Ammal was plaintiff. There is no allegation that during the said period, Rengayya Chettiar was suffering from any physical or mental illness. Though he was an octogenarian, he commanded good health at the time of adoption and the recitals in the adoption deed would indicate that all his mental and physical faculties were functioning well. The execution of adoption deed and the factum of adoption have been established.
10.(iii) As to the validity of the adoption, the same receives scathing attack from the appellants that Padmalochani did not offer her consent for adoption and hence it is invalid in view of Section 7 of Hindu Maintenance and Adoption Act. The said provision goes thus:-
7. Capacity of a male Hindu to take in adoption:
Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption, provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind."
10.(iv) Padmalochani Ammal has pleaded that she was not present at the time of adoption and without her the adoption took place. But the fact of her presence during adoption was discussed by the Court in earlier proceedings. Ex.A.25 is deposition of Padmalochani Ammal in Guardian Original Petition No.1309 of 1984 in which she has stated that if the court arrives at a conclusion that the adoption is true, she may be appointed as guardian for minor Krishnan and that his father Sekar should not be appointed as guardian. In the proceedings in O.S.No.133 of 1980 and G.O.P.No.39 of 1994 the factum of adoption was pleaded and deposed by the parties. But Padmalochani did not project her contention that she was not consenting party to the adoption.
10.(v) Ex.A-50 is judgment delivered by the Principal Sub-Judge Salem in O.S.No.613 of 1986 filed by minor Krishnan through his next friend and father Sekar against M/s.Nalli Textiles, Chennai, for declaration and permanent injunction restraining the defendant from proceeding with the decree in C.S.No.104 of 1966 on the file of the High Court and to set aside the order passed in E.A.No.744 of 1990 and 2929 of 1970 dated 10.11.1986. Of course, Padmalochani was not a party to the suit. In the judgment, the learned judge has observed that as per the decision in AIR 1965 Madras 191 [Ganga Bayee and another v. P.G. Krishna Rao] when the wife is present at the time of adoption, it must be presumed that she has given her consent for adoption and that it is decided that since Padmalochani was present in the photographs taken by P.W.2 Murugesan on 30.1.88 at the time of adoption, it must be presumed that she gave her consent.
10.(vi) Padmalochani filed the suit in O.S.No.663 of 1995 on the file of the District Munsif Court, Salem, for declaration that the adoption deed dated 30.1.1980 is not true and valid document and not binding on her. The suit was subsequently transferred to Sub-Court Salem and re-numbered as O.S.No.640 of 2002. The suit was filed after 15 years from the date of adoption. In the earlier proceedings, she has participated and made herself acquainted with the fatum of adoption. But she did not plead adverse to adoption nor had she moved her little finger to challenge the same. In the said plaint she has alleged that she has knowledge of the adoption deed in 1993 when received plaint copy and summons in O.S.No.792 of 1993. But she was already put to knowledge about adoption as early as on 25.6.1981 itself, when oral evidence was recorded in O.S.No.133 of 1980.
10.(vii) O.P.No.5 of 1983 is the petition filed by Muniammal under Order 32 Rule 3 of C.P.C to permit her to institute a suit for partition against Krishnan and Padmalochani, in informa pauperis. The certified copy of the said O.P. is Ex.A.20. The learned Sub-Judge, Salem, dismissed her petition directing her to pay Court fee and in appeal before this Court in C.M.A.138 of 1987, the trial Court order was confirmed. But even afterwards she did not pay Court fee and hence the plaint was rejected by the trial Court on 23.9.1993. In the said plaint Muniammal has stated that the alleged adoption is not true and legal. In the said proceedings, Padmalochani was also a party and hence she was aware of the fact of adoption even in the year 1983.
10.(viii) The other proceedings also show that she had been conscious about the adoption, however, only in the year 1995 she had come forward to file a suit challenging the adoption. Hence it is not correct to say that only in the year 1993 she came to know about the adoption. Having knowledge of adoption and remaining quiet without questioning it, she has allowed the period of limitation to expire and it is too late today for her to challenge the adoption. The preponderance of probabilities would go a long way to show that she was a consenting party to the adoption and O.S.No.663 of 1995 is her after thought. Pending of trail of the suit, she died on 8.4.1996 and Amsaveni also breathed her last on 18.12.1991.
10.(ix) The facts of the present case would amply amplify that Padmalochani Ammal was having knowledge of the fact of adoption right from inception and she did not have any intention to question the same and hence the irresistible conclusion would be that she was present during adoption and gave her consent. Consent of wife may either be oral or in writing, express or implied, and has to be proved by the person supporting the adoption. It need not be directly proved but can be inferred from circumstances (Mayne's Treatise on Hindu Law & Usage Sixteenth Edition page 579). In the light of abovestated observations it is held that the adoption under Ex.A-34 is not at all hit by Section 7 of the Hindu Maintenance and Guardianship Act and it is valid. In the order passed by the Principal Sub-Judge, Salem on 21.2.1990, a copy of which is Ex.A-5, where an enquiry was held in obedience to the direction of the High Court to ascertain who is legal heir to the deceased Rengayya Chettiar, the events of adoption and execution of adoption deed were putforth by the plaintiff Krishnan, which were discussed and the Court reached a conclusion that the said Krishnan is sole legal heir to the deceased Rengayya Chettiar. It was affirmed by superior courts also. The substantial question of law is answered that implied consent was there on the part of Padmalochani Ammal, thought not in express terms, which is valid and that it is not in contravention of any provision of law.
SETTLEMENT:
11. (i) Ex.A-33 is registered gift settlement deed executed by Rengayya Chettiar in favour of plaintiff Krishnan while he was minor, aged one year. In the said deed, he has stated that one A.B. Gopalan who is brother of Padmalochani was managing his business and he made loss to the business and hence bad-blood existed between them and after sacking him, he (Rengaiah Chettiar) has been looking after his business, that on condition that till his lifetime he should enjoy the income from the properties without power of alienation and after his life-time the minor has to take the property and that he has applied for mutation of name in patta and Panchayat tax. Another condition is that Sekar had to pay Rs.250/- per month to Padmalochani for her maintenance and also to maintain Amsaveni. P.W.3 is auditor of Rengayya Chettiar. He says that Rengayya Chettiar read the settlement deed and put his signature in every page which was seen by him and other witnesses and afterwards he and other witnesses put their signatures in the presence of Rengayya Chettiar, that he paid Rs.5,720/- through him.
11.(ii) In the cross examination, his evidence in the chief examination has not been shattered in any way. No motive was attributed to him to depose against the defendants. There is no room to smell-rat on his oral testimony. By his examination, execution of Ex.A-33 has been established.
11.(iii) Learned Senior Counsel Mr. R. Viduthalai appearing for the appellants would assail the settlement by stating that the evidence adduced by D.W.4, one of the attestors to the settlement, depicts suspicious circumstances shrouded the execution of the settlement deed and the Court may place reliance upon his evidence and reject the said deed. D.W.4 M.V. Rathnam is attesting witness to the settlement deed as well as the will. His mother-in-law is younger sister of Muniammal. He is auto driver by profession. He would say that on both the occasions viz., at the time of execution of the settlement deed and the Will, sedative injection (kaf;f Crp) was administered to Rengayya Chettiar and while he was unconscious, his signatures were obtained. He would say that while Rengayya Chettiar was bed ridden after his pelvis fracture, one Dr. Lavakumar was brought by Sekar who asked him to administer sedative injection and it was done, that to his query, Sekar told that there was no necessity to explain to him, that Rengayya Chettiar caught hold of his (D.W.4) hands and told him that Sekar and his father planned to grab his properties, that he (D.W.4) thought that he might leave the place without putting signature, however, he made up his mind to be there, since even if he were not there, Sekar would arrange some other persons for attestation and Rengayya Chettiar could not be safe-guarded and hence after signing the deeds he might explain the actual situation either before the Court or to the police, that Sekar obtained signatures of Rengayya Chettiar in every page, that he did not make him know the contents of the deed and purpose for which the signatures were obtained nor had he read out the recitals, that Sekar took him (D.W.4) and other witnesses to Registrar's office and signatures and thumb impressions of Rengayya Chettiar were obtained in the car itself and while Rengayya Chettiar quizzed, Sekar got angry and threatened him, and that he (D.W.4) and husband of Sekar's sister attested to the document and put their thumb impressions also.
11.(iv) On the date of execution of settlement deed on 28.1.1980 also sedative injection was administered to Rengayya Chettiar as stated above, as per D.W.4. He further adds that Sekar took the settlement deed and left the place by stating that he would obtain signature of auditor Sundaram and after obtaining the same he got signatures from other witnesses and that he (D.W.4) and Elayaperumal attested after signatures and thumb impressions were received from Rengayya Chettiar while he was in the car by the office peon. He comes forward with identical story while he says about the execution of the adoption dated 30.1.1980. Even though he had not attested to it, he claims that he was present at the time of execution of the adoption deed and the signatures were obtained from Rengayya Chettiar by Sekar by administering sedative injection and that Padmalochani ammal did not say that she accepted the adoption.
11.(v) While this court carefully scans the oral testimony of D.W.4, it could be concluded unhesitatingly that it does not bear the ring of truth. All the three deeds were executed in January 1980 but only on 18.4.2004, after a quite long period of 24 years, he came forward to say that signatures and thumb impressions were obtained form Rengayya Chettiar when he was in sedation. It is interesting to note that on all the occasions as per his oral account, Sekar arranged to administer sedative injection to him which is quite unbelievable for the reason that he had been keeping quiet for a very long time without divulging the same to anybody else or in any earlier proceedings.
11.(vi) While accepting the fact of attestation to the settlement deed and Will, he wants to support the claim of appellants by portraying a false picture before the Court. His evidence is bristled with improbabilities. He has not stated anything as to why he submitted himself to the threat of Sekar. He might have left the place when unwarranted things happened. He tried to justify his presence there. As per his evidence , he should have informed the alleged illegal activities within a reasonable time to the police or before the Court in any of the proceedings since he is closely related to Muniammal, who is connected to the family of Rengayya Chettiar. In these circumstances, no reliance could be placed upon the testimony of D.W.4 which is rejected as regards incredible stories stated by him. The substantial question of law is answered that there were no suspicious circumstances surrounding the execution of the settlement deed. The execution has been duly established by the evidence of P.W.3.
WILL:
12. (i) Ex.A.35 is the registered will executed by Rengayya Chettiar on 14.1.1980 bequeathing his properties to Krishnan, the contents of which are as mentioned in the settlement deed. He has further mentioned therein that since his brothers, in his opinion, were not competent to perform obsequies to him after his death, he intended to give away his properties to Krishnan, nominating Sekar, his father as guardian. Earlier, he had executed a Will on 8.10.1973, which was kept in Salem District Registrar's office in a sealed cover and the same was withdrawn by him and that he has cancelled the said Will. As far as the proof of execution of the will is concerned, the evidence of D.W.4 is available. He says that he attested the will on the date of execution, came to Sub-Registrar's Office and the same was registered. This Court has rejected his part of evidence as to the other circumstances which allegedly led Rengayya Chettiar to sign. However, insofar as the remaining portion is concerned, viz., the attestation of the Will, he has clearly mentioned that Rengayya chettiar put his signature in the Will.
12.(ii) As adverted to supra, D.W.4 had not revealed about the circumstances in which the Will and settlement were executed at any earlier point of time and a strong presumption has to be drawn that Rengayya Chettiar executed the Will in a sound disposing state of mind. In the earlier litigations between the parties, the existence of Will was mentioned.
12.(iii) Ex.B.27 is xerox copy of an unregistered Will reportedly executed by Rengayya Chettiar on 20.12.1982 in favour of Padmalochani and Muniammal. The appellants have not taken any steps to produce the original before any of the three Courts. They have not also examined any witness connected with Ex.B.27. Rengayya Chettiar died on 28.12.1982, one week after the date of Will (20.12.1982). This will has not been proved in accordance with law.
12.(iv) A telling circumstance to find out the proof of Ex.A-35 Will is very much available in Ex.A-33 Settlement Deed itself. It has been already observed that the execution of settlement has been duly proved by examination of P.W.3. In the settlement deed, Rengayya Chettiar has categorically mentioned that on 14.1.1980, he has executed a Will bequeathing his immovable properties and business to one Krishnan and the same was registered in Salem Sub-Registrar's office on the even date, that he reiterated that the contents of the Will are correct, that he had mentioned the reasons for excluding Padmalochani and that with the intention of avoiding future problems he had decided to give absolute interest in the property, he executed the gift settlement deed. Even though any attesting witness to the Will was not brought to box by the plaintiff, the evidence of D.W.4 with reference to putting of signature by Rengayya Chettiar in the Will and the proof of execution of settlement deed through the examination of P.W.3 would clearly indicate that the Will was executed by Rengayya Chettiar who had real intention that the plaintiff should get all his properties.
12.(v) Even if the Will Ex.A-35 is not taken into consideration, still the contents of settlement would clearly indicate the intention of the testator that after his lifetime, the plaintiff should take all his properties. With the cost of repetition it is stated that even if certain conditions were imposed in the settlement, viz., maintaining Padmalochani by paying Rs.250/- per month and to maintain Amsaveni also forever, he desired that the properties should devolve upon the plaintiff. It is profitable to extract the relevant portions in the settlement deed which would demonstrate the intention of the testator:
VERNACULAR (TAMIL) PORTION DELETED English translation of abovesaid recitals is as under:
"I have exeucted a Will on 14.1.1980, bequeathing all my immovable properties and business to you, minor Krishnan, making you absolute owner therefor, registered the same in Salem Registrar's office in Document No.5 of 1980, on 14.1.1980, registration completed on 19.1.1980 in Book No.3, Volume 121 from page 117 to 120. I agree that all the recitals and contents contained in the said Will are true."
"The condition goes to the effect that I am entitled to enjoy the income alone from the undermentioned properties as per my wish. But I am not to encumber the properties by mortgaging or selling, even if I do so, it is not valid; if I encumbered so, it would not bind you. Till my life time, I have the right to enjoy the properties alone. After my life time, you shall possess the properties."
12.(vi) The above said recitals in settlement would clearly show that Rengayya Chettiar had confirmed the execution of the Will and the disposition of the properties under the same. He was alive for about two years after the execution of the Will.
12.(vii) Ordinarily, the burden of proving the due execution of the Will is discharged if the propounder leads evidence to show that the will bears signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally of an attesting witness depending on availability has been called for proving its execution as required by Sec.68 of Evidence Act. But a peculiar circumstance available in this case is that the testator himself asserted that he had already executed a Will in favour of Krishnan. His categorical and definite assertion of execution of Will in the settlement, which has been duly proved as required by law, is a clinching proof to conclude that the will is genuine.
12.(viii) In view of the unambiguous intention of the testator in the settlement deed, it could also be construed as Will. In AIR 1924 Madras 605 [Venkatachalam Chetty v. Govindasawmi Naiker] a Division Bench of this Court dealt with an identical circumstance on construction of a deed of gift. The following are the contents of the deed and observations of this Court:-
"You shall yourself after my lifetime use and enjoy the two rooms built on the ground of the house Municipal No.11............ I shall myself enjoy the rent in respect of those two rooms as long as I may be alive. You shall yourself use and enjoy after my lifetime and that rent and that ground and the two rooms from son to grandson and so on in succession with power to gift, mortgage, exchange and sale. No one has any right to or interest in those rooms. To this effect is the gift deed document exeucted and given in respect of the aforesaid two rooms and their grounds." In form it is a deed of gift and not a will, but in fact it is a declaration of the intentions of the donor with respect to her property which she desires to be carried into effect after her death, because there is no disposal of any immediate rights of possession or any immediate interest in the property.
In view of the above proposition, there is no embargo for this Court to reach a conclusion that the real intention of the testator was to give his properties to Krishnan and in this regard it is observed that on the strength of the settlement and Will Ex.A-33 and Ex.A-35 respectively, Krishnan has become absolute owner of properties which belonged to Rengayya Chettiar. Since the Will dated 28.12.1982 marked as Ex.B-27 has not been proved, it is also observed that the recitals in Ex.A-33 and Ex.A-35 would prevail over Ex.B.27 Will and that Ex.A-33 and Ex.A-35 are his last Wills demonstrating his desire as to the disposition of his properties.
12.(ix) The following are the well settled principles and guiding factors for the Court, to follow while placing reliance on a will. The onus probandi lies on the person who propounds the Will and this onus is in general discharged by proof of capacity and the fact of execution from which the knowledge and the assent to its contents by the testator will be assumed. But where a will is prepared and executed under circumstances which excite the suspicion of the court, it is for those who propound the Will to remove them and to prove affirmatively that the testator knew and approved the contents of the document. Where once it has been proved that the will has been executed with due solemnities by a person of competent understanding and apparently a free agent, that is, when the propounder of the Will has discharged the onus, the burden of proving that it was executed under undue influence is on the party who alleges it." Influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a Will must be an influence exercised either by coercion or by fraud. Undue influence, in order to invalidate a Will, must amount to coercion or fraud. Its existence must be established as a fact and it must also appear that it was actually exercised on the testator.
13. In 2007 (1) SCC 546 [Gurudev kaur and Others v. Kaki and Others] the Supreme Court has dealt with the principles with regard to the appreciation of intention of the testator and the duty cast upon the court. The operative portion of the judgment goes thus:-
"The High Court has clearly deviated from the settled principle of interpretation of a Will. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will that the court looks into the nature of the bequest."
"The contents of the will have to be appreciated in the context of his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another."
14. The learned counsel appearing for both sides have also argued as to the powers of the High Court exercisable under Section 100 C.P.C. and cited the authorities of the Supreme Court.
15. Powers of High Court under Section 100 C.P.C.:
"Sec.100. Second appeal (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed exparte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.] 1[100A. No further appeal in certain cases.
Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge.]
1. Section 100A was substituted by Act No. 46 of 1999, section 10 and now further has been substituted by Act No. 22 of 2002,
section 4 (w.e.f. 1-7-2002)."
16.(i) The learned Senior Counsel for the Appellant would place reliance upon a decision of the Supreme Court in AIR 2009 SC 1481 [U.R.Virupakshaiah v. Sarvamma & Anr.] wherein it is held that when the courts below had arrived at a decision of finding of fact, taking into consideration inadmissible evidence and was based on presumptions wrongly raised, the High Court can interfere though its jurisdiction is limited under 100 C.P.C.
16.(ii) The same principle has been reiterated in the subsequent decision of the Supreme Court reported in (2009) 3 Supreme Court Cases 287 [Narendra Gopal Vidyarthi v. Rajat Vidyarthi] wherein it is observed that the finding of fact may give rise to a substantial question of law, inter alia, in the event, the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence have not been taken into consideration or inadmissible evidence have been taken into consideration. Elaborating this preposition, the Apex Court has referred to earlier judgments of the Court which are as follows:
In (2007) 12 SCC 190 [Krishnan v. Backiam] "10. Under the amended Section 100 CPC the High Court has to frame substantial questions of law and can decide the second appeal only on those questions framed. A perusal of the questions framed shows that no question of law was framed as to whether the finding of fact of the first appellate court that Lakshmi and Ramayee are one and the same person, is based on no evidence or is perverse.
It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate Court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said finding are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. In the present case no question was framed by the High Court as to whether the findings of the first appellate court that Ramayee and Lakshimi are one and the same person, is a finding based on no evidence or is perverse. Hence the findings of the first appellate court that Ramayee and Lakshmi are one and the same person, could not have been interfered with by the High Court. ( See also Subramanya Swami Temple v. V. Kanna Gounder (2009) 3 SCC 306 : (2008) 9 Scale 386)"
In (2007) 8 SCC 155 [Boodireddy Chandraiah v. Arigela Laxmi] the apex Court held thus:-
"4. ....'21. The phrase "substantial question of law", as occurring in the amended section 100 CPC is not defined in the Code. The word substantial, as qualifying "question of law" , means of having substance, essential, real of sound worth, important or considerable. It is to be understood as something in contradiction with technical , of no substance or consequence, or academic merely . However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or
Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. Ram Ditta (AIR 1928 PC 172) the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 100 CPC (since omitted by the Amendment Act 1973) came up for consideration and Their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case. In AIR 1962 SC 1314 [Sir Chunilal V.Mehta and Sons Ltd., v. Century Spg. And Mfg. Co. Ltd.,] the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapaudi Subba Rao v. Noony Veeraju [AIR 1951 Mad 969] (Chunilal case (supra) AIR 1962 SC 1314 at P. 1318, Para 5) "5. ... When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the peculiar facts of the case it would not be a substantial question law."
16.(iii) As far as the facts of the present cases are concerned, in the considered view of this Court, the findings recorded by the Court below are not perverse and they do not suffer from any infirmity either factually or legally. On due consideration of the materials, evidence and exhibits on record, the courts below, bestowing their diligent consideration over the matter in issue, came out with proper conclusion. This Court does not find any misinterpretation of any documents on the part of the courts below.
16.(iv) In Rimmalapudi Subba Rao's case (supra), the following principles have been laid down for observance of the High Court in dealing with concurrent findings of the Courts below. The said judgment has been referred by the Supreme Court in Narendra Gopal Vidyarthi's case (supra). The following is the relevant portion of the Full Bench judgment of this Court in Rimmalapudi Subba Rao's case:
"24.(iii) The general rule is that the High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the court have wrongly case the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings."
Applying the above said principles to the facts of the present case, it is held that the Courts below have not ignored any material evidence nor acted on no evidence; there was no wrong or infirmity from the proved facts by applying the law earnestly and they have not wrongly cast the burden of proof.
15(v). Mr.K.M. Vijayan, the learned Senior Counsel for the respondent/plaintiff would garner support from a decision of the Supreme Court in 2009 (5) SCC 264 [Narayanan Rajendran and another v. Lekshmy Sarojini and Others] wherein it is held that the jurisdiction of the High Court under Section 100 C.P.C is strictly involving substantial questions of law and the High Court would not be justified in dealing with any second appeal without first formulating substantial question of law and the High Court should keep in mind the legal position before interfering in a case of concurrent findings of facts and will refrain from interfering with the concurrent findings of fact without formulating substantial question of law.
16.(vi) In 1999 (3) SCC 722 [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others] it is held that concurrent findings of fact, however erroneous, cannot be disturbed under the section. In 2007 (1) SCC 546 [Gurudev Kaur and Others v. Kaki and Others] it is observed that now the High Courts can interfere only where substantial questions of law are involved and have been formulated in the memorandum of appeal. Moreover, High Court must first formulate the questions of law and only thereafter it can proceed to decide them and that the amendment introduced in 1976 clearly indicates that legislature never intended the second appeal to become a third trial on facts. It is further held that where, by the Will, the testator bequeathed the entire estate to only one of several heirs and the courts below recorded a concurrent finding that the Will was a genuine and valid document and the High Court erred in setting aside the same on the ground that in normal circumstances a prudent man would have bequeathed a property in favour of his legal heirs.
17. Documents have been produced showing that pursuant to the execution of the above said three documents by Rengayya Chettiar, Krishnan got his name entered in revenue records and that the properties covered by those documents came to his possession, of course, of his father Sekar as his natural guardian as evident from Ex.A-37 property tax receipts from 1980-81 to 2003-2004, Ex.A-52 dated 10.1.1983 issued by the Superintendent of Central Excise in Form L-1, Licence to cure unmanufactured products liable to a Central Duty of Excise, as regards the products from coffee estates, Ex.A-53 Proceedings of the Agricultural Income Tax Officer, Yercaud dated 14.3.1996, granting permission to compound the assessment, Ex.A-54 issued by the District Revenue Officer/Assistant Commissioner (Agricultural Income Tax), Coimbatore dated 4.2.1999 on assessing the agricultural income tax towards coffee yield and Ex.A-55 property tax receipts from 1982 to 2003. In the presence of ample evidence in this regard, it is observed that the gift settlement deed was given effect to.
18. On 2.5.94 Arun Chakravarthi Gupta was taken in adoption by Padmalochani by means of registered Adoption Deed,Ex.B-19. In view of the proof and enforceability of the documents Ex.A-33, 35 and Ex.B-27, Krishnan alone would be the sole surviving legal representative to get title to the estate of the deceased Rengayya Chettiar. Hence Ex.B-19 has no consequence at all.
19. The Substantial questions of law formulated by this Court have been answered as indicated above.
20. In the light of the observations, findings and conclusions of this Court contained in this judgment, interference with the common judgments and decrees passed by the Courts below is not at all warranted. There is no need to upset the findings and decisions of the Court below. No valid ground nor circumstance has been made out to disturb the concurrent findings of the Court below, they are confirmed. These appeals suffer dismissal.
21. In fine, all six Second Appeals are dismissed. No costs. All connected M.Ps are also dismissed.
ggs To
1. The Principal District Judge, Salem.
2. The Additional Subordinate Judge, Salem